55-10-401        Driving under the influence of intoxicant, drug or drug producing stimulant prohibited - Alcohol concentration in blood or breath.

 

(a)        It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the State or any other location which is generally frequented by the public at large, while:

(1)        Under the influence of any intoxicant, drug, substance or combination thereof producing effects on the central nervous system to a degree which impairs, to any extent, the driver’s ability to operate the vehicle or;

 

(2)        The alcohol concentration in such person’s blood or breath is eight-hundredths of one percent (.08 %) or more or;

 

(3)        The alcohol concentration in such person’s blood is four-hundredths of one percent (.04%) and the vehicle is a commercial motor vehicle.

 

(b)        For purposes of proving a violation of this section, evidence that there was, at the time the test was taken, eight-hundredths of one percent (.08%) or more by weight of alcohol in the defendant’s blood shall create a presumption that the defendant’s ability to drive was sufficiently impaired to constitute a violation of this section.

 

 

 55-10-402       Repeat Offenders

 

(a)        Repeat Offender Defined

 

For purposes of this part, a person who is convicted of § 55-10-401 shall be considered a repeat offender subject to enhanced penalties under this part if the person has been convicted of a violation of § 55-10-401 within the past ten years from the date of the person’s current offense or has been convicted of § 39-13-106, § 39-13-213(a)(2), or § 39-13-218  at any time prior to the offense.

 

(b)        Convictions from other states

 

Prior convictions for offenses similar to those designated in (a) from another state, district, or territory of the United States shall also be considered to determine if a defendant is a repeat offender and shall be counted in the same manner as convictions in Tennessee.     

 

(c)        Driving Record as Evidence of Prior Convictions          

 

A certified computer printout of the official driver record maintained by the Department of Safety shall constitute prima facie evidence of any prior conviction.  A copy of the certified computer printout of the driving record shall be delivered to the defendant at least 14 days prior to trial.  If the defendant alleges error in the driving record in a written motion, the Court may require that a certified copy of the judgment be provided for inspection by the Court as to validity prior to the introduction of the department printout into evidence.

 

           

55-10-403        Penalties: Incarceration 

 

A person convicted for a violation of §55-10-401 shall be sentenced as follows:

 

(a)        First offense with a blood alcohol concentration less than .15%-

 

To serve eleven (11) months and twenty nine (29) days in the county jail or workhouse which may be suspended after the service of not less than 48 consecutive hours. This offense is a Class A misdemeanor.

 

(b)        First offense with blood alcohol concentration of .15 or above-                                           

 

To serve eleven (11) months and twenty nine (29) days, which may be suspended after the service of seven (7) days, provided that the first forty eight (48) hours shall be served consecutively.  The provisions of this section constitute an enhanced sentence and not a new offense. This offense is a Class A misdemeanor.

 

(c)        Second Offense

 

To serve eleven (11) months and twenty nine (29) days, which may be suspended after the service of not less than forty-five (45) consecutive days. This offense is a Class A misdemeanor.

 

(d)        Third Offense

 

 To serve eleven (11) months and twenty-nine (29) days, which may be suspended after the service of not less than one hundred twenty (120) consecutive days.  This offense is a Class A misdemeanor.

 

(e)        Fourth Offense

 

To serve one to six years which may be suspended after the service of not less than one hundred eighty (180) consecutive days, provided that during the final thirty (30) days of the sentence, the person may be eligible to attend in-patient treatment or may be released to a halfway house, which provides out-patient treatment services and counseling to assist the person’s transition to society and discourage further impaired driving behavior. The fourth offense is a class E felony.

 

 

(f)         Fifth or Subsequent Offense

 

To serve two to twelve years which may be suspended after the service of not less than three hundred sixty (360) consecutive days. The fifth offense is a Class D felony

 

(g)        Child Endangerment Enhanced Penalty

 

Notwithstanding the other provisions of this section, if at the time of the offense, the person was accompanied by a child under eighteen (18) years of age, the penalty shall be enhanced by a mandatory minimum incarceration of thirty (30) consecutive days.

 

 

55-10-404        Penalties: Fines

 

In addition to incarceration the person convicted for a violation of 55-10-401 shall be

fined as follows:

 

In addition to incarceration the person convicted of a violation of § 55-10-401 shall be fined as follows:

 

(a)        First Offense:    Three hundred fifty dollars ($350) to one thousand five hundred dollars ($1,500);

 

(b)        Second Offense:  Six hundred ($600) to three thousand five hundred dollars ($3,500);

 

(c)        Third Offense:     One thousand one hundred dollars ($1,100) to ten thousand dollars ($10,000);

 

(d)        Fourth Offense:  Three thousand dollars ($3,000) to fifteen thousand dollars ($15,000);

 

(e)        Fifth or subsequent Offense:  Five thousand dollars ($5,000) to fifteen thousand dollars ($15,000);

 

(f)         Child Endangerment:  One thousand dollars ($1,000) in addition to any other fine.

 

 

 

 

 

 

 

55-10-405        Penalties: Driving Privileges

 

In addition to incarceration and fines the person shall have his or her driving privilege

suspended as follows:

 

In addition to incarceration and fines the person shall have his or her driving privilege suspended as follows:

 

            (a)        For first offense: one year;

 

            (b)        For second offense: two years;

 

            (c)        For third offense sentenced pursuant to § 55-10-407:  three years;

 

            (d)        For third or fourth offense: five years;

 

(e)        For fifth or subsequent offense: For life or until the person completes ten calendar years without committing another violation of § 55-10-401.

 

 

55-10-406        General Provisions

 

(a)        Service of Sentence

 

All persons sentenced under this part shall, in addition to service of at least the minimum sentence, be required to serve the difference between the time actually served and the maximum sentence on probation.

 

(b)        The judge shall impose the following conditions:

 

(1)  Participation in an alcohol and drug safety DUI school, and/or drug offender school program, and

 

(2)   Participation in an alcohol and drug assessment conducted by a licensed alcohol and drug abuse treatment facility or a licensed behavioral health professional with alcohol and drug treatment experience and specific training in clinical alcohol and drug assessments with a report concerning the findings of the assessment to be delivered to the Court, and

 

(3)   Upon the second or subsequent conviction for violating the provisions of § 55-10-401 participation in a program of rehabilitation at an alcohol or drug treatment facility,  and

 

(4)   The payment of restitution to any person suffering physical injury or personal losses as the result of such offense if such person is economically capable of making such restitution.

 

(c)        The judge may impose any additional conditions of probation which are reasonably related to the offense.

 

(d)        No person charged with violating the provisions of  § 55-10-401, vehicular    assault under § 39-13-106, vehicular homicide by intoxication under § 39-13-213, or aggravated vehicular homicide under § 39-13-218, shall be eligible for suspension of prosecution and dismissal of charges pursuant to the provisions of §§ 40-15-102 - 40-15-105 and 40-32-101(a)(3)-(c)(3) or for any other pretrial

 

(e)       Sentencing for this part is to be controlled by this part.  Nothing in the Sentencing      Reform Act of 1989 or other subsequent sentencing statutes shall be construed as altering, amending or decreasing the penalties established in this section for the offense of driving under the influence, provided that this part shall not be construed to limit the provisions of § 40-35-315. At the discretion of the judge and pursuant to the guidelines of § 40-35-104, sentences imposed pursuant to § 55-10-403 & § 55-10-405 on misdemeanor sentences may be set up to one hundred percent notwithstanding § 40-35-302 or any other sections concerning sentencing credits.  

 

(f)     Legal use is not a defense

 

The fact that any person charged with violating § 55-10-401 is or has been legally entitled to use alcohol or any drug or substance shall not constitute a defense against any charge of violating this section.

 

(g)        Relationship to sections concerning licensing

 

Nothing in the provisions of this part shall be construed so as to in any way limit, change, alter, repeal, or amend the provisions of  §§ 55-50-303, 55-50-501, or  55-50-502, nor to limit the power or authority of the Department of Safety to revoke or suspend a driver's license, permit, or privilege under the provisions of Chapter 50 of this title.

 

 

55-10-407       Treatment Sentencing

 

(a)        Purposes:

 

The foremost purpose of this section is to protect the public on the highways and roadways of the State.  To protect the public it is necessary to reduce the likelihood of future driving under the influence offenses by the specific defendant. In doing so the following principles are hereby adopted:

 

(1)        Every defendant shall be punished by the imposition of a sentence justly deserved in relation to the seriousness of the offense and the repetition of the offense;

 

(2)        To accomplish the purpose of this section judges and prosecutors are discouraged from reducing driving under the influence offenses to reflect a lesser number of prior convictions than the true number of prior convictions;

 

(3)        This chapter is to provide an alternative sentence for defendants who have committed a second or third driving under the influence offense within 10 years due to alcohol or substance abuse addiction;

(4)        Punishment shall be imposed to prevent crime and promote respect for the law by:

 

(A)       Providing an effective general deterrent to those likely to violate the driving under the influence laws of this State;

 

(B)       Providing specific deterrence to second and third driving under the influence offenders to discourage further dangerous driving behavior;

 

(C)       Restraining defendants with a lengthy history of driving under the influence;

 

(D)       Encouraging effective rehabilitation and monitoring of those defendants, where reasonably feasible, by promoting the use of alternative sentencing, correctional programs and technology that elicit voluntary cooperation of defendants with specific deterrence; and

 

(E)       Encouraging restitution to victims where appropriate;

 

(5)        Sentencing should exclude all considerations respecting race, gender, creed, religion, national origin and social status of the individual;

 

(b)        A person who has been convicted of a second or third offense for driving under the influence may be considered as a candidate for treatment and monitoring sentencing if the offender petitions the Court and the Court determines that the offender will cooperate with the required provisions. A person who is accepted and through his actions or words fails to cooperate fully with the program will be remanded to jail to complete at least an increased minimum penalty pursuant to

§ 55-10-407 (c) or (d) without credit for time spent on the program.  A probation officer or supervising authority shall monitor the person’s compliance with all requirements.

 

(c)        Treatment Sentencing Second Offender

 

For conviction of the second offense, the person shall be sentenced to serve in the county jail or workhouse eleven (11) months and twenty nine (29) days. If the person is accepted as a candidate for treatment sentencing, the mandatory minimum sentence to be served shall be sixty (60) consecutive days, provided that after serving fifteen (15) consecutive days the person may be released for inpatient treatment, once available, for not less than twenty one (21) days, but will be released to supervised probation or community corrections only when clinically recommended or approved by the court.  Upon release, the person shall attend outpatient treatment as recommended, any meetings required to monitor the person’s cooperation with the court and wear a continuous remote transdermal alcohol monitoring device for sixty (60) continuous days.  If the person does not consume alcohol during the sixty (60) continuous days, the person may be eligible, upon meeting all other reinstatement requirements, in the Court’s discretion to receive a license to drive after a functioning ignition interlock device is installed in the person’s vehicle for the balance of the two year license revocation.  The person may only drive a vehicle with a functioning ignition interlock device during the remainder of the license revocation.

 

(d)        Treatment Sentencing Third Offender

 

For conviction on the third offense, the person shall be confined in the county jail or workhouse for eleven (11) months and twenty nine (29) days. If the person is accepted as a candidate for treatment sentencing, the mandatory minimum sentence to be served shall be one hundred and fifty (150) consecutive days provided that after serving forty five (45) consecutive days the person may be released for inpatient treatment, once available, for not less than twenty one (21) days, but will be released to supervised probation or community corrections only when clinically recommended or approved by the Court.  Upon release, the person shall attend outpatient treatment as recommended, any meetings required to monitor the person’s cooperation with the Court and wear a continuous remote transdermal alcohol monitoring device for ninety (90) continuous days that will continuously, remotely monitor the person to determine if the person consumes any alcohol.  If the person does not consume alcohol during the ninety (90) continuous days, the person may be eligible, upon meeting all other reinstatement requirements, in the Court’s discretion to receive a license to drive after a functioning ignition interlock device is installed in the person’s vehicle for the balance of the three year license revocation. The person may only drive a vehicle with a functioning ignition interlock device during the remainder of the license revocation.

 

(e)        Alcohol and Drug Treatment

 

(1)        If the Court orders participation in an inpatient alcohol and drug treatment program pursuant to this part the person ordered to participate shall be confined to the inpatient treatment center and shall not, without further Court order, be released for any reason until the completion of the treatment. If the person successfully completes treatment the balance of the mandatory jail sentence shall be suspended.

 

(2)        The Court is not empowered to order the expenditure of public funds to provide treatment.  If the Court finds that the person is unable to pay all or part of the costs of treatment, the expense or some portion of the expense may be paid from the Alcohol and Drug Addiction Treatment fund established in § 40-33-211(c)(2) pursuant to a plan and procedures developed by the Department of Health.  When making this finding as to the ability of the person to pay for the cost of treatment, the Court shall take into consideration:

 

(i)                  The nature of the services of the program rendered;

 

(ii)        The usual and customary charges for rendering such program in   the community;

(iii)       The income of the accused regardless of source;

 

(iv)       The poverty level guidelines compiled and published by the United States Department of Labor;

(v)        The ownership or equity of any real or personal property of the accused; and

(vi)       Any other circumstances presented to the Court which are relevant to the issue of the ability to pay.           

 

(3)     If a person ordered to participate is able to pay and participates in a program that provides treatment without cost to an individual, that person shall be obligated to pay for treatment in the same manner as provided in § 33-2-1202.  If a person ordered to participate, participates in a Court approved private treatment program, that person shall be responsible for the cost and fees involved with the program.

 

(4)     If the person attends inpatient treatment after arrest but before conviction, the person may receive credit for completion of inpatient treatment for purposes of treatment sentencing.  However, after a finding of guilt, the person must receive an alcohol/drug assessment and follow the recommendations of the assessment even if more inpatient treatment is necessary.

 

 

55-10-408        Chemical Tests, Preliminary Tests, Persons Prohibited from Refusing, Admissibility

(a)

 

(1)        When a law enforcement officer has reasonable suspicion that a person may have been violated § 55-10-401, or that a person under age 21 may have been driving with a measurable blood alcohol concentration, the officer may request that the suspect submit to a preliminary alcohol screening test of the suspect to determine such person's alcohol concentration using a device approved by the Tennessee Bureau of Investigation for that purpose.  Nothing in this section precludes the officer from further requesting or requiring additional testing pursuant to any section of this Act or any other provision of law.

 

(2)        Any person who drives a motor vehicle in this State is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person's blood, a test or tests for the purpose of determining the drug content of such person's blood, or both such tests.  However, no such test or tests may be administered pursuant to this section, unless conducted at the direction of a law enforcement officer having probable cause to believe such person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants as prohibited by § 55-10-401, or was violating the provisions of §§ 39-13-106, 39-13-213(a)(2) or 39-13-218 or is included in § 55-10-408 (a)(3). No provision of this section limits an officer from requesting a test or tests during the investigation of a traffic accident.

 

(3)         Persons prohibited from refusing testing

 

Any person may refuse to submit to chemical analysis unless:

 

(i)         Another person has suffered serious bodily injury or has died and there is probable cause to believe the injury or death was the result of the driver’s intoxication; or

 

(ii)       The person does not have a current valid license to drive in Tennessee or another state, district, or territory of the United States; or

 

(iii)       The person’s driver’s license is revoked or suspended in this or any other state due to a conviction for driving under the influence or for a violation of implied consent; or

 

(iv)       The person has previously been convicted of a felony for driving under the influence offense, vehicular assault or vehicular homicide in this or another state; or

 

(v)        The person is under the age of 21 and not permitted to consume alcohol.

 

(4)        For the results of such test or tests to be considered as presumptive evidence under § 55-10-401(b), it must first be established that all tests administered were administered to the person within two (2) hours following such person's arrest or placement in custody.  The two (2) hour limit shall be measured from the time of arrest or physical custody until the beginning of the observation period for a breath test if a breath test is conducted.  The two (2) hour limit shall not apply to a test for drug content or in cases involving serious bodily injury or death to another person.

 

(5)        When a person submits to a blood test at the request of a law enforcement officer or is required to submit to a blood test, only a qualified person may draw the blood for the purpose of determining the alcohol or drug content therein.  This limitation does not apply to the taking of breath specimens.  Qualified persons are:

 

(A)       A physician, registered nurse, licensed practical nurse, clinical laboratory technician, licensed paramedic, licensed emergency medical technician, clinical laboratory technologist, medical technologist, or certified or nationally registered phlebotomist.  No person who withdraws blood for this purpose or hospital, medical clinic or employee of the person shall incur any civil or criminal liability as a result, except for damages that may result from the negligence of the person withdrawing the blood.

 

(6)        A blood sample may be obtained by any means lawful.  If the taking of a blood sample is observed by a law enforcement officer and the law enforcement officer testifies to the name and position of the qualified person who withdrew the blood, the result if otherwise admissible, shall be admissible without the attendance of the person who withdrew the blood at trial or any other hearing.

 

(7)        Any law enforcement officer who requests that the driver of a motor vehicle submit to either or both tests authorized pursuant to this section, for the purpose of determining the alcohol or drug content, or both, of the driver's blood, shall, prior to conducting either test or tests, advise the driver that refusal to submit to the test or tests will result in the suspension, by the Court, of the driver's operator's license, and, if such driver is driving on a license that is cancelled, suspended or revoked because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the influence of an intoxicant under § 55-10-401, that the refusal to submit to such test or tests will, in addition, result in a fine and mandatory jail or workhouse sentence.  However, no such advice is necessary if the offender is not qualified to refuse testing pursuant to (a)(3) above.

 

(A)       The advice of the law enforcement officer shall be included on a form devised and supplied by the Department of Safety. The driver shall be given an opportunity to sign the form to indicate consent or refusal. Refusal to sign the form shall not be grounds to exclude the results of the test or the fact that the driver refused.

 

(B)      Any person who is unconscious as a result of an accident or is unconscious at the time of arrest or apprehension or otherwise in a condition rendering that person incapable of refusal, shall be subjected to the test or tests as provided for by §§ 55-10-405 - 55-10-412, but the results thereof shall not be used in evidence against that person in any Court or before any regulatory body without the consent of the person so tested, unless the person is prohibited from refusing testing.  Refusal of release of the evidence so obtained will result in the suspension of that person's driver license, thus such refusal of consent shall give such person the same rights of hearing and determinations as provided for conscious and capable persons in this section.

 

(8)        The results of any test authorized by § 55-10-408 shall be reported in writing by the person making such test, and such report shall have noted on it the time at which the sample analyzed was obtained from the person.

 

(A)       The results of such test shall be made available to the person  tested, upon request.

 

(9)        Nothing in this section shall affect the admissibility in evidence, in criminal prosecutions for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or § 55-10-408 (a)(3) of any chemical analysis of the alcoholic or drug content of the defendant's blood which has been obtained by any means lawful without regard to the provisions of this section.

(10)      Provided probable cause exists for criminal prosecution for the offense of driving under the influence of an intoxicant under § 55-10-401, nothing in this section shall affect the admissibility into evidence in a criminal prosecution of any chemical analysis of the alcohol or drug content of the defendant's blood that has been obtained while the defendant was hospitalized or otherwise receiving medical care in the ordinary course of medical treatment.

 

 

 

55-10-409        Penalties for Violation of Implied Consent

 

(a)        If a person refused a test or tests pursuant to § 55-10-408, the Court shall revoke the license of such driver for a period of:

 

(1)        One (1) year, if the person does not have a prior conviction for a violation of  §§ 55-10-401, 39-13-213(a)(2), 39-13-218, 39-13-106, or 55-10-418, in this State, or a similar offense in any other jurisdiction;

 

(2)        Two (2) years, if the person does have a prior conviction for a violation of  §§ 55-10-401, 39-13-213(a)(2), 39-13-218, 39-13-106, or 55-10-418, in this State, or a similar offense in any other jurisdiction;

 

(3)        Two (2) years, if the Court finds that the driver of a motor vehicle involved in an accident, in which one (1) or more persons suffered serious bodily injury, violated § 55-10-408 by refusing to voluntarily submit to such a test or tests after a request to submit; and

 

(4)        Five (5) years, if the Court finds that the driver of a motor vehicle involved in an accident in which one (1) or more persons are killed, violated § 55-10-408 by refusing to voluntarily submit to such a test or tests after a request to submit.

 

(b)        Any person who has previously been convicted of a violation of 55-10-401, 39-13, 106, 39-13-213 or 39-13-218, who refuses to submit to a test or tests commits a class A misdemeanor.  The penalty shall include a sentence of eleven (11) months and twenty nine (29) days, which may be suspended after incarceration for five (5) consecutive days.  The penalty shall be served in addition to any penalty for § 55-10-401 and shall be served consecutively to the penalty for § 55-10-401.

 

(c)        Nothing in this section shall effect the admissibility in evidence, in criminal prosecutions for aggravated assault by the use of a motor vehicle, vehicular assault, vehicular homicide or aggravated vehicular homicide or any person included in § 55-10-408 (3) who is not permitted to refuse testing of any chemical analysis of the alcoholic or drug content of the defendant's blood which has been obtained by any means lawful without regard to the provisions of this section.

 

(d)        Nothing in this section shall affect the admissibility into evidence in a criminal prosecution any chemical analysis of the alcohol or drug content of the defendant’s blood that was obtained while the defendant was hospitalized or otherwise receiving medical care in the ordinary course of medical treatment.

 

(e)        No individual or employer of the individual including a hospital, medical office, jail, fire department, ambulance service or any other entity for whom the person works, who withdraws blood from a person suspected of violating § 55-10-401 pursuant to the written request of a law enforcement officer shall incur any civil or criminal liability as a result of the withdrawing of such blood, except for any damages that may result from negligence by the person who draws the blood. 

 

 

55-10-410        Tests for alcoholic or drug content of blood - Procurement and processing of samples - Results - Additional testing.

 

(a)        When a specimen taken in accordance with the provisions of this chapter is forwarded for testing to the office of the Director of the Tennessee Bureau of Investigation, the specimen shall be examined for alcohol concentration, the presence of narcotics or other drugs, or for both alcohol and drugs, if requested by the arresting officer, county medical examiner, or any district attorney general.  The chief medical examiner or the medical examiner's duly appointed representative shall execute a certificate which indicates the name of the accused, the date, time and by whom the specimen was received and examined, and a statement of the alcohol concentration (or presence of drugs) of the specimen.

 

(b)        When a specimen taken in accordance with the provisions of this chapter is forwarded for testing to the office of the Director of the Tennessee Bureau of Investigation, a report of the results of such test shall be made and filed in that office, and a copy mailed to the district attorney general for the district where the case arose.

 

(c)        The certificate provided for in this section shall, when duly attested by the Director of the Tennessee Bureau of Investigation or the Director's duly appointed representative, be admissible in any Court, in any criminal proceeding, as evidence of the facts therein stated, and of the results of such test, if the person performing the test of such specimen shall be available, if subpoenaed as a witness, upon demand by either party to the cause, or, when unable to appear as witnesses, shall submit a deposition upon demand by either party to the cause.

 

(d)        The results of any test or tests shall be reported in writing by the person making such test, and such report shall have noted on it the date and time at which the sample analyzed was obtained from the person.

 

(e)        The results of any such test shall be made available by the testing agency to the person tested, upon request.

 

(f)         The person tested shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of that person's own choosing and at that person's own expense; provided, that the medical laboratory is licensed pursuant to Title 68, Chapter 29.

 

 

 

55-10-411        Court Procedures

 

(a)        Search warrants not precluded-

The willing refusal to submit to testing does not preclude testing under other applicable procedures of law and does not preclude a judge or magistrate from issuing a search warrant for blood alcohol content evidence.

 

(b)        Any person who violates the provisions § 55-10-408  by refusing to submit to either test or both such tests, shall be charged by a separate warrant or citation that does not include any charge of violating § 55-10-401 that may arise from the same occurrence.

 

(c)        The Court having jurisdiction of the offense for which such driver was placed under arrest shall not have the authority to suspend the license of a driver who refused to submit to either or both tests, if the driver was not advised of the consequences of such refusal and was qualified to refuse testing.

 

(d)        Refusal to submit or failure by law enforcement to advise a driver who may refuse testing of a test or tests in § 55-10-408 shall be admissible at the person’s trial for driving under the influence and at any other relevant procedure unless the person was not qualified to refuse testing.

 

(e)        Breath  Alcohol Analysis-Admissibility in Evidence-

 

(1)        In any civil or criminal trial, hearing or proceeding, the results of breath alcohol analysis are admissible in evidence without antecedent expert testimony that breath alcohol analysis provides a trustworthy and reliable method of measuring the alcohol content of the expired breath from an individual upon a showing that the offered testimony meets the Tennessee Bureau of Investigation Crime Laboratory Breath Alcohol Standards.

 

(2)        Nothing in this section shall be construed as prohibiting any party in civil or criminal trial from offering proof that breath alcohol analysis does not provide a trustworthy and reliable method of measuring the alcohol content or the expired breath of an individual, nor shall it prohibit a party from cross-examining the other party’s expert as to the lack of trustworthiness and reliability of such analysis.

 

(f)         Enhancement Warning

 

Any person convicted of an initial or subsequent offense shall be advised, in writing, that there are substantially greater penalties for each future offense committed and that the current conviction will be used against the person in any future case.  The person shall also be informed that convictions from other states shall be used in the same manner as a conviction from this state.

 

(g)        Notice of Prior Conviction

 

In the prosecution of second or subsequent offenders, the indictment or charging instrument must allege the prior conviction or convictions for violating any of the provisions of § 55-10-401, § 39-13-213(a)(2), § 39-13-106, § 39-13-218 or § 55-10-418, setting forth the time and place of each prior conviction or convictions. When the State uses a conviction for the offense of driving under the influence of an intoxicant, aggravated vehicular homicide, vehicular homicide, vehicular assault or adult driving while impaired committed in another state for the purpose of enhancing the punishment for a violation of § 55-10-401, the indictment or charging instrument must allege the time, place and state of such prior conviction.

 

(h)        Fines

                  

Unless the judge, using the applicable criteria set out in § 40-14-202(b), determines that a person convicted of violating the provisions of § 55-10-401 is indigent, the minimum applicable fine shall be mandatory and shall not be subject to reduction or suspension.  All fines are to be paid on the date sentence is imposed unless the Court makes an affirmative finding that the defendant lacks a present ability to pay.  The Court shall then order a date certain before which payment shall be made.  Should the defendant fail to comply with the order of the Court, the clerk shall notify the Court of such failure for further proceedings.

 

 

55-10-412        Offenses Committed After Posting Bond

 

(a)        Any person who is arrested for a violation of § 55-10-401 while on bond for another violation of §§ 55-10-401, 39-13-106, 39-13-213(a)(2), 39-13-218 shall be considered a danger to the public and the person’s bond for the original charge shall be revoked until the Court makes a determination that the person no longer poses a danger to the public.

 

(b)        In determining bond for a person arrested for a violation of § 55-10-401 while on bond for another violation of §§55-10-401, 39-13-106, 39-13-213(a)(2), 39-13-218, the court shall take into account the factors set out in § 40-11-118 and also consider that the person poses a substantial risk of danger to the public.

 

 

55-10-413        Vehicle Forfeiture

           

(a)        The vehicle used in the commission of the offenses below is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, and part 2.  The Department of Safety is designated as the applicable agency, as defined by § 40-33-202, for all forfeitures authorized by this subsection. Vehicles are subject to seizure if the driver has committed:

 

(1)        A violation for §55-10-401 while the person’s license to drive is revoked, cancelled or suspended due to a prior conviction for §55-10-401; or

 

(2)        A violation of § 55-10-401 within five (5) years of a previous conviction of § 55-10-401; or

 

(3)        A third or subsequent violation of § 55-10-401 within ten (10) years; or

 

(4)        A violation of §§ 39-13-106, 39-13-213(a)(2), 39-13-218.

 

 

(b)        It is the specific intent that a forfeiture action under this section shall serve a remedial and not a punitive purpose.  The purpose of the forfeiture of a vehicle after a person's second or subsequent DUI violation is to prevent unscrupulous or incompetent persons from driving on Tennessee's highways while under the influence of alcohol or drugs.  Driving a motor vehicle while under the influence of alcohol or drugs endangers the lives of innocent people who are exercising the same privilege of riding on the State's highways.  There is a reasonable connection between the remedial purpose of this section, ensuring safe roads, and the forfeiture of a motor vehicle.  While this section may serve as a deterrent to the conduct of driving a motor vehicle while under the influence of alcohol or drugs, it is nonetheless intended as a remedial measure.  Moreover, the statute serves to remove a dangerous instrument from the hands of individuals who have demonstrated a pattern of driving a motor vehicle while under the influence of alcohol or drugs.

 

(c)        Only P.O.S.T. certified or State commissioned law enforcement officers will be authorized to seize such vehicles under this section.

 

(d)        All reasonable expenses shall be paid pursuant to § 40-33-202, whether a seizure determination is made after a hearing or by settlement between the parties. In addition notwithstanding any other provision fifty percent (50%) of the proceeds after the payment of expenses shall be returned to the seizing agency and fifty percent (50%) shall be transmitted to the Commissioner of the Department of Health for deposit in the “alcohol and drug addiction treatment fund” administered by the department.

 

 

55-10-414        Restricted License

 

(a)

(1)        If a person's motor vehicle operator's license has been revoked for a violation of § 55-10-401 or § 55-10-408 or § 55-10-420, such person may apply to the trial judge for a restricted driver license.  The trial judge may order the issuance of a restricted motor vehicle operator's license in accordance with  § 55-50-502, if based upon the records of the Department of Safety:

 

(A)       The person does not have a prior conviction for a violation of      §§ 39-13-106, 55-10-401 , 39-13-213(a)(2) or  39-13-218, in this State or a similar offense in another state; or

(B)       The person has one prior conviction for a violation of  § 55-10-401 in this State or a similar offense in another state, but the conviction occurred more than five (5) years since the present offense in this State or another state and

(C)       The person consented to a breath or blood alcohol test with a result of .149% BAC or below.

 

(b)        The trial judge may issue such order allowing the person so convicted to operate a motor vehicle as follows:

 

The driver shall not drink alcohol while driving or drive while any alcohol remains in his/her body.  The driver shall not drive under the influence of alcohol, drugs or other substances. This limited driving privilege does not include the privilege of operating a commercial motor vehicle.  Driving when essential for emergency medical care is authorized at any time. Driving, other than for emergency medical care, may be permitted:

(1)        For work related or educational purposes as specified by the court;

(2)        For maintenance of the household as specified by the court;

 

(3)        For community or public service assignments, alcohol and drug assessment or treatment; ignition interlock appointments; probation or community correction appointments or other matters relating to court supervision as specified by the court.

 

(c)        Such order shall be made a part of the order or judgment of the Court.  The order must be presented within ten (10) days after the date of conviction to the Department of Safety, accompanied by a fee of sixty-five dollars ($65.00).  If the person successfully completes a driver's license examination, the department shall forthwith issue a restricted license embodying the limitations imposed upon the person so convicted.

 

(d)        The provisions of this section shall also apply equally to any Tennessee resident who would qualify under this section, but was convicted in another state, district or territory if the person supplies a copy of the conviction from the other location.

 

 

 

(e)        The provisions of this section shall not be construed to in any way limit the provisions of § 55-50-303 or § 55-50-502, nor to limit the power and authority of the Department of Safety to revoke or suspend the driver license under the provisions of Chapter 50 of this title.

 

(f)         Any restricted license issued under this section is subject to renewal in the same manner as other motor vehicle licenses.

 

 

55-10-415        Ignition Interlocks

 

(a)        If a person's motor vehicle operator's license has been revoked for a violation of §§ 55-10-401, 55-10-408 or 55-10-420, such person may apply to the trial judge for permission to drive in the same manner and for the same duration as a person may apply for a restricted license, but only after the person submits proof from a licensed ignition interlock provider that an ignition interlock has been installed on the person’s vehicle if:

 

(1)        The person does not have a previous conviction for a violation of  §§ 39-13-106, 55-10-401 , 39-13-213(a)(2),